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Related Keywords: reaffirmation . secured debt .

Case Law Topics

  • Chapter 13: Treatment of wholly unsecured 2nd mortgages

    Cases that deal with the effect of undersecured 2nd mortgages on plan payments and correct procedures to strip them.

  • Chapter 13: Mortgage modification, when allowed

    Section 1332(b)(2) prevents cramdown of residential mortgages which it describes as claims secured by a primary residence. Here are cases that talk about whether specific fact patterns do or do not fit within the protection of this section.

  • Chapter 13: Paying mortgages outside the plan

  • Local Standards: Housing and Utilities AND Mortgage/Rent Expense

    Whether debtors are entitled to the full household expense allowance even if their actual expenses are less.

  • Secured Debts: Mortgage Payment Deduction where Property is to be Surrendered

    This issue comes up in three contexts.

    1. Forms 22A: First is the threshold determination of whether the debtor qualifies for Chapter 7 or only for Chapter 13 at the time of the original finding, as determined by the means test (Form 22A), and

    2. Form 22C: if the debtor goes the 13 route, the length of the "applicable commitment period" as determined by Form 22C-- a fancy way of saying whether the plan has to be 3 or 5 years.

    3. The third context applies only to above-median income debtors in Chapter 13, where debtors must complete Form 22C to determine their "disposable income" and also, later must must propose an actual monthly payment plan to repay their debts, which must be reviewed and approved by a Judge who can reject a plan for non compliance with the law and feasibility (i.e. whether the debtor will really be able to afford the proposed payments? or on the other end, whether the debtor will be paying enough into the plan to satisfy the law's standards against "abuse" of the bankruptcy system.)

    The case law deals with the complications that arise because the first two, based on Forms 22A (for Chapter 7) and Form 22C (for Chapter 13) seem to ask for a snapshot in time (at the date the debtor first files for bankruptcy, whereas, under traditional bankruptcy law, a judge can look at the "real world" of the debtors circumstances several months later, when it finally comes time to determine whether a proposed Chapter 13 plan can be approved. Courts are split on whether the 2005 bankruptcy amendments require judges to use the Form 22C calculation, or whether they can consider changes in the debtor's actual circumstances at when the plan is finally up for approval (called the "confirmation hearing").

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